Radheshyam G. Garg vs Safiyabai Ibrahim Lightwalla on 19 January, 1987
Equivalent citations: AIR 1988 Bom 361, 1987 (3) BomCR 459
Bench: A Agarwal
ORDER1. This petition has been filed by the original defendant tenant seeking to challenge the judgments and decrees of of both the lower Courts decreeing the suit of the respondent-plaintiff for possession under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as "the Bombay Rent Act").
2. The premises which are subject matter of the dispute in the present petition consists of one room in Ever Ready Cottage situate at Virar, taluka Vasai, District Thane. The said premises were let to the defendant in the year 1958 at a monthly rent of Rs. 25/-. The said premises originally belonged to one Asmabai who on 1st Aug., 1975 executed a registered sale deed in favour of her three daughters, who were plaintiffs in the suit for possession. The present suit came to be filed on 2nd Oct., 1975 by the plaintiffs, the daughters of said Asmabai, after they had given to the defendant their notice of attornment dated 21st August 1975 wherein they had informed the defendant that the premises had been transferred by Asmabai in their favour by a registered document. The said notice alleged that the defendant had acquired alternate suitable residence inasmuch as he had been allotted railway quarters at Andheri and he had shifted as far back as in Jan. 1965. It was also alleged that the defendant had unlawfully sub-let the suit premises.
3. The defendant vide his reply dt. 13th Sept., 1975 denied the title of the plaintiffs and contended that no intimation regarding the alleged transfer had been given to him by Asmabai. Though he admitted having been allotted railway quarters he contended that that accommodation was of temporary nature. Moreover, he visits the suit premises on Sundays and holidays. The allegation of subletting was also denied.
4. In the suit plaintiffs alleged that the defendant was guilty of non-user and subletting. The plaintiffs also contended that the defendant had acquired alternate suitable residence and that the plaintiffs require the suit premises reasonably and bona fide for their personal use and occupation for their residence. Hence, decree was claimed under Sections 13(1)(a), (e), (l) and (g) of the Bombay Rent Act.
5. The defendant resisted the said suit denying all the grounds set up for claiming possession. During the pendency of the said suit the plaintiffs amended the plaint on 1st Jan., 1977 whereby they set up a partition between themselves whereunder the suit property came to be allotted to plaintiff 2. Plaintiffs 1 and 3 were consequently deleted from the proceedings.
6. The sole plaintiff, being plaintiff 2, vide her notice dt. 14th April 1977 claimed arrears of rent from the defendant with effect from 1st Aug., 1975. The defendant vide his reply dt. 29th April 1977 contended that he was the tenant of Asmabai and he had paid rent to her by cheques for the period up to Feb., 1977 and the rent for the period commencing from March 1977 had been deposited in Court.
7. On 26th Oct., 1977 the plaintiff amended her plaint and incorporated the ground of default under Section 12(3)(a) of the Bombay Rent Act for claiming possession as despite aforesaid notice dt. 14th April 1977 claiming arrears of rent for more than six months, no payment had been made by the defendant to the plaintiff.
8. The learned Judge of the trial Court, after considering evidence, both oral and documentary, by his judgment and order dt. 31st Nov., 1981 was pleased to hold that the plaintiff had failed to establish the ground of subletting as also the ground of bona fide requirement. However, the plaintiff had proved the grounds of default, acquisition of alternate suitable residence and non-user. Pursuant to the aforesaid findings the suit of the plaintiff for possession was decreed.
9. Feeling aggrieved by the aforesaid judgment and decree the defendant had preferred an appeal. The learned Judge of the lower appellate court who heard the said appeal was pleased to hold that the plaintiff had proved the grounds of non-user, acquisition of alternate suitable residence, subletting and also default. The finding of the trial Court that the plaintiff had failed to prove the ground of bona fide requirement was confirmed. The lower appellate Court found that the defendant had during the pendency of the appeal retired from service in Sept., 1981 and had ceased to occupy railway quarters allotted to him since after 31st Jan., 1982. Pursuant to the aforesaid findings of the appeal of the defendant was dismissed with costs.
10. Aggrieved by the aforesaid judgments and decrees the defendant has approached this Court under Article 227 of the Constitution.
11. Mr. Raghuwanshi, learned Advocate appearing in support of the petition, firstly submitted that the plaintiff would not be entitled to urge the ground of default for claiming possession. He pointed out that in the suit notice dt. 21st Aug., 1975 there was no demand towards arrears of rent inasmuch as there were no arrears on that date. Similarly in the suit filed on 2nd Oct., 1975 there was no ground of default set up for claiming possession. The plaintiff was not entitled to rely upon her subsequent notice dt. 14th April 1977 for claiming possession by amending the plaint on 26th Oct., 1977. The amendment of the plaint related back to the date of the filing of the suit on which date there were no arrears. Mr. Raghuwanshi relied upon the case of All India Reporter Ltd. v. Ramchandra, , in
support of his contention that the amendment in this case would relate back to the date of the suit i.e. 2nd Oct., 1975. The plaintiff was not thus justified in taking advantage of the alleged arrears subsequent to the filing of the suit and claim decree for possession on the ground of default by amendment of the plaint. The said subsequent default could at best give a fresh cause of action to the plaintiff and the plaintiff can claim possession on that cause of action only by filing a fresh suit and not by amending the present plaint.
12. I find considerable substance in the aforesaid submission of Mr. Raghuwanshi. Sub-section (2) of Section 12 of the Bombay Rent Act provides that no suit for recovery of possession shall be instituted by landlord on the ground of non-payment of rent until expiration of one month next after a notice in writing of the demand of rent has been served upon the tenant. In my judgment, the condition precedent for filing a suit for possession on the ground of non-payment of rent is issuance of aforesaid notice under Section 12(2) of the Rent Act and it is only when the tenant fails to pay the rent demanded in the said notice within one month after service of the said notice that a cause of action can be said to have accrued in favour of the plaintiff to file a suit for possession on the ground of non-payment of rent. In this view of the matter I hold that the claim of the plaintiff for possession on the ground of default in payment of rent set up by amendment of the plaint cannot give a valid ground for eviction under Section 12(3)(a) or 12(3)(b) of the Bombay Rent Act.
13. Mr. Raghuwanshi further submitted that the original landlady Asmabai had not intimated the transfer of the suit premises to the plaintiffs and hence the defendant was justified in ignoring the plaintiffs notice dt. 21st Aug., 1975 whereunder they had intimated the defendant regarding the transfer of the properly to the plaintiffs. Mr. Raghuwanshi submitted that it was open to the plaintiffs to request Asmabai, their mother, to inform the defendant that she had transferred the suit premises to the plaintiffs, but that the plaintiffs did not do. Mr. Raghuwanshi on placing reliance upon the counter foils of cheque books of the defendant, Exhibits 28/B-1 2 and 3, bank pass book, Exhibit 27/B-4 as also the extract of the accounts produced with the list, Exhibit 55A, contended that the defendant had paid rent by cheques to Asmabai by sending the same under certificate of posting, which cheques had been duty encashed by her. The said payments cover the period of rent up to to end of Feb., 1977 and the defendant had deposited rent in Court for the period from March, 1977 onwards. Mr. Raghuwanshi submitted that both the Courts below had erred in not exhibiting the aforesaid extract of account of the bank which had been duly signed by the Agent of the Andheri Branch of the Maharashtra State Co-operative Bank Ltd. The lower appellate Court by placing reliance on Section 2(8) of the Bankers' Books Evidence Act, 1891 has held that 'certified copy' means a copy of any entry in the books of a Bank, together with a certificate written at the foot of such copy that it is a true copy of such entry, that such entry is contained in one of the ordinary books of the bank and was made in the usual and ordinary course of business, and that such book is still in the custody of the bank, such certificate being dated and subscribed by the principal accountant or manager of the Bank with his name and official title. According to the learned Judge since the said extracts of statement of account had not been signed by the principal accountant or manager as required and since the same did not bear any date or official seal, the same could not be treated as certified copy and consequently the same could not be read in evidence.
14. In my judgment the aforesaid view of the learned Judge of the lower appellate Court was hypertechnical. The said extract of account was duly signed by the Agent of the bank. Implicit in it was a certificate that it was a true copy of an entry contained in one of the ordinary books of the bank and was made in the usual and ordinary course of business and that such book was in the custody of the bank. The detailed ingredients mentioned in the defining Clause 8 of Section 2 of the Bankers' Books Evidence Act, 1891 for qualifying to be 'certified copy' are not mandatory but merely directory. Sufficient compliance depending upon facts and circumstances of each case is enough to qualify a document to be 'certified copy'. I, therefore, hold that the said extract of account produced at Exh. 55. A is admissible in evidence. The said extract along with the bank pass-book as also counter-foils of cheque book undoubtedly support the defence contention that he had paid the rent to the landlady Asmabai. Though defendant in his reply dt. 29th April 1977 had positively averred that he had paid rent by cheques sent to the landlady Asmabai under certificate of posting, the plaintiff took no steps to examine Asmabai, who was none else but the mother of the plaintiff. It was open to Asmabai to step into witness box and depose as to whether the defendant's case that he had paid rent to her was true or false. In that view of the matter I hold that the plaintiff is not entitled to a decree for possession on the ground of default in payment of rent.
15. Mr. Raghuwanshi further submitted that the lower Courts had erred in holding, that the defendant had acquired alternate suitable residence. All that had ben established was that the defendant had been allotted railway quarters at Andheri where the defendant was required to attend his duties are Stock Verifier. The defendant has retired during the pendency of the appeal and even on the finding of the lower appellate Court, though service quarters were available to the defendant it was only up to 30th Jan., 1982 whereafter the defendant had surrendered the said service quarters and was required to go back to the suit premises. According to Mr. Raghuwanshi, the lower appellate Court ought to have taken into account the aforesaid subsequent event and ought not to have given the finding that the defendant had acquired alternate suitable residence.
16. In my judgment, though it is true that defendant had been allotted service quarters as far back as in 1965 and he continued to occupy the same for almost seventeen years, I would be well justified in taking into account the subsequent fact of his retirement from service whereafter he was required to surrender the said quarters. In this view of the matter I hold that the plaintiff, is not entitled to claim possession on the ground of acquisition of alternate suitable residence under Section 13(1)(l) of the Bombay Rent Act.
17. On the issue of non-user Mr. Raghuwanshi submitted that this was not a case where the plaintiff had established that there was total non-user of the suit premises. On the contrary it was the case of the plaintiff that defendant had sublet premises. The claim of the defendant was that he was visiting the suit premises on Sundays and holidays and there was no justification in rejecting the said claim. Mr. Raghuwanshi relied upon the decision in the case of Balwant Sadashiv v. Vasudeo Shripad reported in (1985) 2 Rent CJ 561 in support of his contention that before a decree under Section 13(1)(k) of the Bombay Rent Act can be passed, the plaintiff has to establish total non-user of the premises.
18. Mr. Rane, learned Counsel appearing on behalf of the respondent-landlady, however, has relied upon a decision of the Supreme Court in the case of Vora Rahimbhai Haji Hasanbhai v. Vora Sunderlal Manilal , wherein it has been held that
all that Section 13(1)(k) contemplates is that the premises had not been used for the purpose for which they were let out for a continuous period of six months immediately preceding the date of suit without reasonable cause. The Rent Act had to be brought in because of the scarcity of accommodation in the cities. Hence it cannot be said that a tenant may take a premises on rent and keep it locked for years together without using it in the absence of any reasonable cause. The intendment of the Legislature could be carried out only when the premises is used and not kept vacant for years together.
19. In the aforesaid case the premises were found to have been sub-let by the tenant in favour of a sub-tenant, which sub-tenancy having been created prior to the coming into operation of the Bombay Rent Act was found to be not illegal. Despite the occupation by the sub-tenant the ground of non-user was upheld. In view of the aforesaid judgment of the Supreme Court cited by Mr. Rane, it must be held that the ratio laid down by the judgment of this Court in the case of Balwant Sadashiv (supra) cited by Mr. Raghuwanshi is no longer a good law. Hence for a claim under Section 13(1)(k) it is not necessary for a landlord to establish that the premises are left to a total non-user. It is enough if he proves that his tenant has not used the premises for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit and the same was without reasonable cause. Though the premises are shown to be in use say by a third person or for purpose other than the one for which they were let, the same cannot detract from the concept of 'non-user' contemplated under Section 13(1)(k). In this view of the matter, though the premises had been occupied by a third party, the ground of non-user is still open to the plaintiff for claiming possession.
20. Both the Courts below on appreciation of evidence of the parties came to the conclusion that defendant was not using the suit premises without reasonable cause for a continuous period of six months prior to the filing of the suit. I am not inclined to accept the submission of Mr. Raghuwanshi that the said finding is one arrived at without any evidence on record or that the said finding is perverse. On the contrary the said finding is a finding of fact which is not susceptible of being interfered with in a petition under Article 227 of the Constitution of India. I, therefore, hold that the decree for possession passed on the ground of non-user is justified.
21. On the issue of subletting Mr. Raghuwanshi submitted that no cogent evidence had been led on the part of the plaintiff that the suit premises had been sublet so as to entitle the plaintiff to claim decree for possession on that ground. All that had been shown was that one Bansali, who was alleged to be in occupation of the suit premises, had obstructed the plumbing work at the suit premises. Further, the notice of attornment dt. 6th Aug., 1965 was shown to have been received by the third party, one Bansali, in the suit premises, and not by the defendant The aforesaid evidence, submits Mr. Raghuwanshi, falls far short of establishing the case of subletting.
22. Mr. Rane on behalf of the plaintiff has submitted that the plaintiff had established that the defendant was not in occupation of the suit premises and the suit premises were in the occupation of third party. The moment the plaintiff establishes the aforesaid facts, the lower Courts were justified in drawing an inference that the suit premises had been sublet. The exact relationship between the tenant and the occupant was within the exctusive knowledge of the tenant and hence burden of showing as to in what capacity the occupant was occupying the suit premises lay entirely upon the defendant. The defendant having not given any explanation in regard to the aforesaid nature of occupation by the said third party, the lower Courts were justified in drawing the inference of subletting.
23. In my judgment the submissions of Mr. Rane are justified and deserve to be accepted. Throughout the period from 1965 to 1982 the defendant was not residing in the suit premises but was residing in his service quarters. The lower Courts had, on appreciation of evidence of the plaintiff and corroborated by the presence of Bansali when he had objected to the plumbing work being carried out in the suit building, as also by the endorsement by the same third party on the attornment notice i.e. accepting the said attornment letter on behalf of the defendant, came to the conclusion that the plaintiff had succeeded in establishing that the suit premises had been unlawfully sub-let and the said finding is not liable to be interfered with in this petition under Article 227 of the Constitution. In this view of the matter, the decree for possession on the ground of subletting and non-user is liable to be confirmed.
24. In the result, decree for possession passed by the Courts below are confirmed and the petition is dismissed. Rule discharged. There shall be no orders as to costs.
25. Mr. Raghuwanshi on behalf of the defendant prays for time to vacate. He has also expressed desire on the part of the defendant to approach the Supreme Court. In the event of the defendant filing in this Court usual undertaking within two weeks from today to the effect that in the event of the Supreme Court not granting special leave, the defendant shall quit and hand over vacant and peaceful possession of the suit premises to the plaintiff on or before 30th June 1987 decree for possession not to be executed upto 1st July 1987. If the undertaking is not filed within the time provided, decree to become forthwith executable.
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